Sharada Terry Products Ltd Vs CCE

2018-TIOL-423-CESTAT-DEL

CX - Assessee is manufacturer of excisable goods and procured goods from M/s. Steel India and M/s. Aggarwal Traders against duty paid invoice and avail cenvat credit there on - Allegation has been made out against assessee on the basis of statements of registered/ dealers of supplier of goods wherein it has been stated that registered dealers were issuing invoices for availment of inadmissible cenvat credit without accompanying the goods - In their statements, registered dealers/supplier never stated that they have not supplied goods to assessee - They have been given a general statements that they are indulged in activity of issuing invoices without accompanying the goods - But for the two specific invoices in question, Department has not put any specific question to supplier whether against those invoices, the goods has been supplied or not - In that circumstances, a general statement cannot be make a specific statement and can be used against assessee - Therefore, it cannot be alleged that assessee have not received the goods.

The whole dispute is with regard to vehicle in question as owner of vehicle, Shri. Ramesh Chander Gupta has stated that he has sold the vehicle on 06.03.2008 to scrap dealer who also states that he has scrapped the vehicle very next day - In this case, the vehicle was sold in March 2008 and statement were recorded after almost three and a half years in month of October, 2011 - If a scrap dealer is dealing in scraping the vehicle, it is not understandable how he knew the no. of specific vehicle which was scrapped very next day - Further, scrap dealer in his statement, has stated that he has seen the receipt of vehicle and statement of Shri. Ramesh Chander Gupta and signed the statement given by Shri. Ramesh Chander Gupta and the receipt of the vehicle for sale on 14.10.2011, on going through the receipt, it is found that there is not signature of Shri Kuldeep Singh - Therefore the statement given by Shri Kuldeep Singh is not admissible but is doubtful to alleged that same has been taken by Department to implicate the assessee - Cenvat credit cannot be denied to assessee in absence of any concrete evidence against the them: CESTAT - Appeals allowed: DELHI CESTAT

CX - The issue in this appeal by assessee a manufacturer of Menthol/DMO is whether duty have been rightly demanded on 71 drums of DMO lying in factory premises on the date of inspection/panchnama - There is lack of sufficient material on record to support the contention of Revenue that DMO so found and seized was in marketable stage- Further, Revenue have failed to investigate further on the assertions and explanations given by assessee that DMO was not marketable but requires further stages of processing to make it marketable and also insisted on test report, which was not done and as such, there is lack of material to support the allegations in SCN - It is further a fact on record that DMO was found inside the factory premises and there was no action and/or attempt on the part of assessee to remove the same clandestinely - In view of these facts on record, SCN is vague and not tenable: CESTAT - Appeal allowed: ALLAHABAD CESTAT

CX - Main appellant is engaged in manufacture of pan masala (chewing tobacco) In March, 2005, Officers of DGCEI conducted search and verification in various premises of main appellant and connected places - After follow-up investigation, proceeding were initiated against various persons including present appellants - The substantial question is with reference to allegation of clandestine manufacture and clearance of pan masala involving duty liability of Rs.85,30,358/- - Demand for this duty was sought to be sustained based on certain loose sheets of papers recovered from residence of Shri P. Someswar, reported to be job workers of main assessee - To link up the contents of these entries in loose sheets with clandestine manufacture and clearance in factory of main appellant, certain corroborative evidence is required - There is no physical availability of said huge quantities of packing materials - There is nothing on record to indicate that these packing materials were, in fact, procured by main appellant - The person from whom such packing materials were to have been purchased is also not known - Movement of packing materials is not evidenced - Above all, even author of entries made in such private records is not known - This puts a big question mark on relevance of said private records - On careful perusal of all available records, whole case of clandestine manufacture and clearance based on certain private records and recovered from the premises of third party, cannot be sustained in absence of any cogent corroborative supporting evidences.

Regarding the excess clearances of dutiable pan masala over and above the declared quantities, said fact has been admitted not only the main appellant, but also by various dealers, who dealt with the said items - Admitted facts corroborated by dealers indicated to evidence of un-accounted clearance of excess amount of pan masala pouches over and above recorded quantity - In such situation, it is for the main appellant to establish with supporting evidence to the effect that since when such practice was in vogue - It appears that in case of admitted fact corroborated by the dealers, appellant is trying to restrict the duty demand by asserting that such clearance of excess pouches were only after 2003 - Duty demand of Rs.3,93,857/- calculated based on evidences recorded during investigation is sustainable against main appellant - Penalty equivalent to such amount in terms of Section 11AC is also sustainable.

Regarding the confiscation of 49 bags of pan masala found in factory premises of main appellant on 01.03.2005, said confiscation was ordered only on the ground that same are not duly accounted for and were intended for clandestine manufacture later - Such assertion is without any supporting evidence - The goods were found inside the premises of the main appellant and the claim of the main appellant that these were manufactured on the said day and yet to be recorded in the statutory records, cannot be disaccounted without compelling evidence to contrary - It was stated that said goods were dispatched and returned by dealer - However, original authority held that duty paid clearance of such goods earlier could not be linked with seized goods and accordingly, he held that these were non-duty paid items - When the products was stated to be damaged items, the question of their marketability as excisable goods has to be examined - Same has not been done by original authority - He made a summary conclusion that the duty paid nature of the said product has not been established - If the product is not fit for market, duty paid nature or otherwise of the same is of no relevance - Accordingly, confiscation ordered on two items is not legally sustainable: CESTAT - Appeal partly allowed: KOLKATA CESTAT

CX - the assessee-company availed credit on MS Angles, HR Plate & HR Coil, used in the fabrication of structures for supporting capital goods installed in the factory - The Revenue contested such availment - Duty demand was raised for recovery of credit availed -Interest & penaty was imposed as well - The same was upheld by the Commr.(A) - Held - Considered the findings of the Tribunal in Singhal Enterprises Pvt. Ltd. vs. C.Cus. & C. Ex., Raipur which laid down the credit eligibility of these items - Also, the assessee should establish said use by adducing evidence, such as certificate from Chartered Engineer - Hence, matter remanded towards this purpose: CESTAT (Para 2,5,6) - Case Remanded: AHMEDABAD CESTAT

2018-TIOL-422-CESTAT-DEL